Understanding international humanitarian law and human-rights law
By Atty. Lorna Patajo-Kapunan - March 5, 2017
Part One
It is a common mistake to interchange international humanitarian
law (IHL) with human-rights law and vice versa. At this stage in our
country’s history, it is important to understand both humanitarian law
and human-rights law.
IHL regulates relations between states, international organizations
and other subjects of international law. IHL consists of rules that, in
times of armed conflict, seek—for humanitarian reasons—to protect
persons who are not or are no longer directly participating in the
hostilities, and to restrict means and methods of warfare. IHL is meant
to resolve humanitarian issues arising directly from armed conflict,
whether of an international or a noninternational character. An
international armed conflict (IAC) occurs when one or more states
resort to the use of armed force against another state. Should China
disregard the Philippines’s victory over the disputed China Sea/West
Philippine Sea territories, and no diplomatic or bilateral arrangement is
arrived at, it will not be unlikely that an IAC will occur. A
noninternational armed conflict (NIAC) is an armed conflict in which
hostilities are taking place between the armed forces of a state and
organized nonstate armed groups, or between such groups. For
hostilities to be considered as NIAC, they must reach a certain level of
intensity and the groups involved must be sufficiently organized. The
armed conflict of our military with the Abu Sayyaf Group (ASG) and the
National Democratic Front (NDF) are NIAC. International disturbance
and tensions (such as riots and isolated and sporadic acts of violence)
are characterized by acts that disrupt public order without amounting
to armed conflict; they cannot be regarded as NIAC because the level of
violence is not sufficiently high or because the persons resorting to
violence are not organized as an armed group. IHL does not apply to
situations of violence that do not amount to armed conflict. Cases of
this type are governed by provisions of human-rights law.
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IHL is a compromise between two underlying principles, of
humanity and of military necessity. These two principles shape all its
rules. The principle of military necessity permits only that degree and
kind of force required to achieve the legitimate purpose of a conflict, i.e,
the complete or partial submission of the enemy at the earliest possible
moment with the minimum expenditure of life and resources. It does
not, however, permit the taking of measures that would otherwise be
prohibited under IHL. The principle of humanity forbids the infliction of
all suffering, injury or destruction not necessary for achieving the
legitimate purpose of a conflict.
Under IHL, it is essential that the parties to a conflict must, at all
times, distinguish between civilians and combatants in order to spare
the civilian population and civilian property. Neither the civilian
population as a whole nor individual civilians may be attacked. Attacks
may be made solely against military objectives. Parties to a conflict do
not have an unrestricted right to choose methods or means of warfare.
Using weapons or methods of warfare that are indiscriminate is
forbidden, as is using those that are likely to cause superfluous injury or
unnecessary suffering.
It is forbidden to wound or kill an adversary who is surrendering or
who can no longer take part in the fighting. People who do not or can
no longer take part in the hostilities are, thus, entitled to respect for
their lives and for their physical and mental integrity. Such people must,
in all circumstances, be protected and treated with humanity, without
any unfavorable distinction whatsoever. The wounded and the sick
must be searched for, collected and cared for as soon as circumstances
permit. Medical personnel and medical facilities, transports and
equipment must be spared.
Captured combatants and civilians who find themselves under the
authority of an adverse party are entitled to respect for their lives, their
integrity, their personal rights and their political, religious and other
convictions. They must be protected against all acts of violence or
reprisal. They are entitled to exchange news with their families and
receive aid. Their basic judicial guarantees must be respected in any
criminal proceedings against them.
What is the difference between ihl and human-rights law?
IHL and international human-rights law are complementary bodies
of international law that share some of the same aims. Both IHL and
human-rights law strive to protect the lives, the health and the dignity
of individuals, albeit from different angles—which is why, while very
different in formulation, the essence of some of the rules is similar. For
example, both IHL and human-rights law prohibit torture or cruel
treatment, prescribe basic rights for persons subject to criminal process,
prohibit discrimination, contain provision for the protection of women
and the children, and regulate aspects of the right to food and health.
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nitarian-law-and-human-rights-law/
Conclusion
While international humanitarian law (IHL) applies exclusively in
armed conflict (whether international or non-international),
human-rights law applies, in principle, at all times, i.e., in peacetime
and during armed conflict.
However, unlike IHL, some human- rights treaties permit
governments to derogate from certain obligations during public
emergencies that threaten the life of the nation. Derogation must,
however, be necessary and proportional to the crisis, must not be
introduced on a discriminatory basis and must not contravene other
rules of international law—including provisions of IHL. Certain human
rights can never be derogated from: among them, the right to life, the
prohibition against torture or cruel, inhuman or degrading treatment or
punishment, the prohibition against slavery and servitude and the
prohibition against retroactive criminal laws. IHL aims to protect
persons who are not or are no longer taking direct part in hostilities. It
protects civilians and combatants hors de combat, such as the
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wounded, the sick and the shipwrecked or prisoners of war.
Human-rights law, developed primarily for peacetime, applies to all
persons within the jurisdiction of a State. Unlike IHL, it does not
distinguish between combatants and civilians or provide for categories
of protected person.
IHL and human-rights law share common substantive rules (such as
the prohibition of torture), but they also contain very different
provisions. IHL deals with many issues that are outside the purview of
human-rights law, such as the status of combatants’ and prisoners of
war, the protection of the red cross and red crescent emblems and the
legality of specific kinds of weapon. Similarly, human-rights law deals
with aspects of life that are not regulated by IHL, such as the freedom
of the press, the right to assembly, to vote, to strike and other matters.
Furthermore, there are areas that are governed by both IHL and
human-rights law, but in different—and sometimes
contradictory—ways. This is especially the case for the use of force and
detention.
Regarding the use of force, IHL rules on the conduct of hostilities
recognize that the use of lethal force is inherent to waging war. This is
because the ultimate aim of military operations is to prevail over the
enemy’s armed forces. Parties to an armed conflict are, thus, permitted,
or at least are not legally barred from, attacking each other’s military
objectives, including enemy personnel. Violence directed against those
targets is not prohibited by IHL, regardless of whether it is inflicted by a
state or a nonstate party to an armed conflict. Acts of violence against
civilians and civilian objects—as well as indiscriminate attacks—are, by
contrast, unlawful because one of the main purpose of IHL is to spare
civilians and civilian objects the effects of hostilities; and under IHL,
precautions must be taken in order to minimize civilian losses.
Human-rights law was conceived to protect persons from abuse by the
state; it regulates, not the conduct of hostilities between parties to a
conflict, but the manner in which force may be used in law
enforcement. Law enforcement is predicated upon a
“capture-rather-than-kill” approach; the use of force must be the last
resort for protecting life, when other means are ineffective or without
promise of achieving the intended result, and must be strictly
proportionate to the legitimate aim to be achieved (e.g., to prevent What is the difference between IHL and human rights law?
crime, to effect or assist in the lawful arrest of offenders or suspected
offenders, and to maintain public order and security). International Committee of the Red Cross 22 January 2015

https://businessmirror.com.ph/2017/03/12/understanding-international-huma WHAT IS INTERNATIONAL HUMAN RIGHTS LAW?

nitarian-law-and-human-rights-law-2/
Human rights law is a set of international rules, established by
treaty or custom, on the basis of which individuals and groups can
expect and/or claim certain rights that must be respected and
protected by their States. The body of international human rights
standards also contains numerous non-treaty-based principles and
guidelines ('soft law').

The main treaties of human rights law are given below:

a) Universal instruments
 Convention on the Prevention and Punishment of the Crime of
Genocide (1948)
 Convention on the Elimination of All Forms of Racial Discrimination
(1965)
 International Covenant on Civil and Political Rights (1966)
 International Covenant on Economic, Social and Cultural Rights
(1966)
 Convention on the Elimination of All Forms of Discrimination
against Women (1979)
 Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (1984)
 Convention on the Rights of the Child (1989)
 International Convention on the Protection of the Rights of All
Migrant Workers and Members of their Families (1999)
 International Convention for the Protection of All Persons from
Enforced Disappearance (2006)
 Convention on the Rights of Persons with Disabilities (2006)

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b) Regional instruments
 European Convention on Human Rights (1950)
 American Convention on Human Rights (1969)
 African Charter on Human and Peoples' Rights (1981).
These treaties are supervised by human rights bodies, such as the
Human Rights Committee for the International Covenant on Civil and
Political Rights and the European Court for Human Rights for the
European Convention on Human Rights.
While IHL and human rights law have developed in their separate
ways, some human rights treaties include provisions that come from
IHL: for instance, the Convention on the Rights of the Child and its
Optional Protocol on the involvement of children in armed conflict, and
the Convention on Enforced Disappearance.
IHL and international human rights law are complementary bodies
of international law that share some of the same aims. Both IHL and
human rights law strive to protect the lives, the health and the dignity
of individuals, albeit from different angles – which is why, while very
different in formulation, the essence of some of the rules is similar. For
example, both IHL and human rights law prohibit torture or cruel
treatment, prescribe basic rights for persons subject to criminal process,
prohibit discrimination, contain provisions for the protection of women
and children, and regulate aspects of the right to food and health.
There are however important differences between them: their origins,
the scope of their application, the bodies that implement them, and so
on.
Origins
IHL, the origins of which are ancient, was codified in the second
half of the 19th century, under the influence of Henry Dunant, the
founding father of the International Committee of the Red Cross. (See
Question 6.) Human rights law is a more recent body of law: it had its
origins in certain national human rights declarations influenced by the
ideas of the Enlightenment (such as the United States Declaration of
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Independence in 1776 and the French Declaration of the Rights of Man
and of the Citizen in 1789). It was only after the Second World War that
human rights law emerged, under the auspices of the United Nations,
as a branch of international law. The Universal Declaration of Human
Rights of 1948 first defined human rights law at the international level
in a non-binding General Assembly resolution. It was only in 1966 that
this Declaration was translated into universal human rights treaties: the
International Covenant on Civil and Political Rights and the
International Covenant on Economic, Social and Cultural Rights, both of
1966. (See box.)
Temporal scope of application
While IHL applies exclusively in armed conflict (see Question 5),
human rights law applies, in principle, at all times, i.e. in peacetime and
during armed conflict. However, unlike IHL, some human rights treaties
permit governments to derogate from certain obligations during public
emergencies that threaten the life of the nation. Derogation must,
however, be necessary and proportional to the crisis, must not be
introduced on a discriminatory basis and must not contravene other
rules of international law – including provisions of IHL. Certain human
rights can never be derogated from: among them, the right to life, the
prohibition against torture or cruel, inhuman or degrading treatment or
punishment, the prohibition against slavery and servitude and the
prohibition against retroactive criminal laws.
Geographical scope of application
Another major difference between IHL and human rights law is
their extraterritorial reach. That IHL governing international armed
conflicts applies extraterritorially is not a subject of controversy, given
that its purpose is to regulate the conduct of one or more States
involved in an armed conflict on the territory of another. The same
reasoning applies in non-international armed conflicts with an
extraterritorial element: the parties to such conflicts cannot be
absolved of their IHL obligations when the conflict reaches beyond the
territory of a single State. Despite the views of a few important
dissenters, it is widely accepted that human rights law applies
extraterritorially based, inter alia, on decisions by regional and
international courts. The precise extent of such application, however, is
yet to be determined. Human rights bodies generally admit the
extraterritorial application of human rights law when a State exercises
control over a territory (e.g. occupation) or a person (e.g. detention).
Human rights case law is unsettled, however, on the extraterritorial
application of human rights norms governing the use of force.
Personal scope of application
IHL aims to protect persons who are not or are no longer taking
direct part in hostilities. It protects civilians and combatants hors de
combat, such as the wounded, the sick and the shipwrecked or
prisoners of war.
(See Question 7.) Human rights law, developed primarily for peacetime,
applies to all persons within the jurisdiction of a State. Unlike IHL, it
does not distinguish between combatants and civilians or provide for
categories of 'protected person'.
Parties bound by IHL and human rights law
IHL binds all parties to an armed conflict and thus establishes an
equality of rights and obligations between the State and the non-State
side for the benefit of everyone who may be affected by their conduct
(an essentially 'horizontal' relationship). (See Question 8.) Human rights
law explicitly governs the relationship between a State and persons
who are on its territory and/or subject to its jurisdiction (an essentially
'vertical' relationship), laying out the obligations of States vis à vis
individuals across a wide spectrum of conduct. Thus, human rights law
binds only States, as evidenced by the fact that human rights treaties
and other sources of human rights standards do not create legal
obligations for non-State armed groups. The reason for this is that most
groups of this kind are unable to comply with the full range of
obligations under human rights law because, unlike governments, they
cannot carry out the functions on which the implementation of human
rights norms is premised. There is a notable exception to this
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generalization about non-State armed groups: those cases in which a
group, usually by virtue of stable control of territory, has the ability to
act like a State authority and where its human rights responsibilities
may therefore be recognized de facto.
Substantive scope of application
IHL and human rights law share common substantive rules (such as
the prohibition of torture), but they also contain very different
provisions. IHL deals with many issues that are outside the purview of
human rights law, such as the status of 'combatants' and 'prisoners of
war', the protection of the red cross and red crescent emblems and the
legality of specific kinds of weapon. Similarly, human rights law deals
with aspects of life that are not regulated by IHL, such as the freedom
of the press, the right to assembly, to vote, to strike, and other matters.
Furthermore, there are areas that are governed by both IHL and human
rights law, but in different – and sometimes contradictory – ways. This
is especially the case for the use of force and detention.
Regarding the use of force, IHL rules on the conduct of hostilities
recognize that the use of lethal force is inherent to waging war. This is
because the ultimate aim of military operations is to prevail over the
enemy's armed forces. Parties to an armed conflict are thus permitted,
or at least are not legally barred from, attacking each other's military
objectives, including enemy personnel. Violence directed against those
targets is not prohibited 40 by IHL, regardless of whether it is inflicted
by a State or a non-State party to an armed conflict. Acts of violence
against civilians and civilian objects – as well as indiscriminate attacks –
are, by contrast, unlawful because one of the main purposes of IHL is to
spare civilians and civilian objects the effects of hostilities; and, under
IHL, precautions must be taken in order to minimize civilian losses. (See
Question 11.) Human rights law was conceived to protect persons from
abuse by the State; it regulates, not the conduct of hostilities between
parties to a conflict, but the manner in which force may be used in law
enforcement. Law enforcement is predicated upon a
'capture-rather-than-kill' approach: the use of force must be the last
resort for protecting life, when other means are ineffective or without
promise of achieving the intended result, and must be strictly
proportionate to the legitimate aim to be achieved (e.g. to prevent
crime, to effect or assist in the lawful arrest of offenders or suspected
offenders, and to maintain public order and security).
Concerning detention, while both IHL and human rights law provide for
rules on the humane treatment of detainees, on detention conditions
and on fair trial rights, differences emerge when it comes to procedural
safeguards in internment, i.e. the non-criminal detention of a person
based on the seriousness of the threat that his or her activity poses to
the security of the detaining authority. Internment is not prohibited
during armed conflict and, in general, a judicial review of the lawfulness
of the detention is not required under IHL. (See Question 10.) Outside
armed conflict, noncriminal (i.e. administrative) detention is highly
unusual. In the vast majority of cases, people are deprived of their
liberty because they are suspected of having committed a criminal
offence. The International Covenant on Civil and Political Rights
guarantees the right to liberty of person and provides that every
individual who has been detained, for whatever reason, has the right to
judicial review of the lawfulness of his or her detention. This area of
human rights law is based on the assumption that the courts are
functioning, that the judicial system is capable of absorbing all persons
arrested at any given time regardless of their numbers, that legal
counsel is available, that law enforcement officials have the capacity to
perform their tasks, etc. Circumstances are very different during armed
conflict, which is reflected in the provisions of IHL.
The interplay of IHL and human rights rules governing the use of force
and procedural safeguards for internment, at least in international
armed conflicts, must be resolved by reference to the lex specialis, that
is the provisions of IHL that were specifically designed to deal with
those two areas. (See box.)
INTERPLAY OF IHL AND HUMAN RIGHTS LAW
The interplay of IHL and human rights law remains the subject of
much legal attention, particularly because of its consequences for the
conduct of military operations. In its very first statement on the
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application of human rights in situations of armed conflict, the 1996
Advisory Opinion on the Legality of the Threat or Use of Nuclear
Weapons, the International Court of Justice observed that the
protection provided by the International Covenant on Civil and Political
Rights did not cease in times of war and that, in principle, the right not
to be arbitrarily deprived of one's life applied also in hostilities. The
Court added that what constituted arbitrary deprivation of life had to
be determined by the applicable lex specialis, namely, the law
applicable in armed conflict, which is designed to regulate the conduct
of hostilities.
This statement has generally been interpreted as settling the issue
of the interplay of IHL and human rights law and as implying that
human rights law, deemed to apply at all times, constitutes the lex
generalis, while IHL, whose application is triggered by the occurrence of
armed conflict, constitutes the lex specialis. In other words, when
human rights law and IHL are in conflict, the latter is deemed to prevail,
since it was conceived specifically to deal with armed conflict.
While the meaning and even the utility of the doctrine of lex
specialis have been called into question, there is a general acceptance
of its indispensability for determining the interplay of IHL and human
rights law. Although, generally speaking, these two branches of
international law are complementary, the notion of complementarity
cannot resolve the intricate legal issues of interplay that sometimes
arise. In some instance, IHL and human rights rules might produce
conflicting results when applied to the same facts because they reflect
the different circumstances for which they were primarily developed.
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ights-law
 IHL and human rights law
29-10-2010 Overview
International humanitarian law and international human rights law
are two distinct but complementary bodies of law. They are both
concerned with the protection of the life, health and dignity of
individuals. IHL applies in armed conflict while human rights law applies
at all times, in peace and in war.
Both international humanitarian law and human rights law apply in
armed conflicts. The main difference in their application is that
international human rights law allows a State to suspend a number of
human rights if it faces asituation of emergency. IHL cannot be
suspended (except as provided in Article 5 to the Fourth Geneva
Convention).
International human rights law is more complex and unlike IHL
includes regional treaties. The main global legal instrument is the
Universal Declaration of Human Rights adopted by the UN General
Assembly in 1948. Other global treaties include the International
Covenant on Civil and Political Rights, the International Covenant on
Economic, Social and Cultural Rights as well as treaties on the
prevention and punishment of torture and other forms of cruel,
inhuman or degrading treatment or punishment, on the elimination of
racial discrimination and discrimination against women, or on the rights
of the child.
Regional human rights conventions or charters have been adopted
in Europe, the Americas, Africa, and the Arab region.
In situations of armed conflict, human rights law complements and
reinforces the protection afforded by International Humanitarian Law.

However, a State cannot suspend or waive certain fundamental https://www.icrc.org/en/doc/war-and-law/ihl-other-legal-regmies/ihl-human-r

rights that must be respected in all circumstances. These include the ights/overview-ihl-and-human-rights.htm
right to life, the prohibition of torture and inhuman punishment or
treatment, the outlawing of slavery or servitude, the principle of
legality and the non-retroactivity of the law and the right to freedom of
thought, conscience and religion.

States have a legal duty to respect and implement both IHL and
human rights law. Compliance with IHL requires a state to introduce
national legislation to implement its obligations, to train its military and
to bring to trial those in grave breach of such law. Human rights law
also contains provisions requiring a State to take legislative and other
appropriate measures to implement its rules and punish violations.

IHL is based on the Geneva and Hague Conventions, Additional

Protocols and a series of treaties governing means and methods of
waging war such as those banning blinding laser weapons, landmines
and chemical and biological weapons, as well as customary law.